Stephen Shaw’s plea for civilised values in immigration detention

When Home Secretary Theresa May announced another inquiry into detention last February, many of us groaned. The cross-party Parliamentary Inquiry was about to publish its wide-ranging, evidenced and radical critique of detention policy and practice. Why yet another review, if not merely to get Ministers off the hook of responding to the Parliamentary Inquiry? The long grass beckoned.

The grass has certainly been growing in the eleven months it has taken for the review to be produced and published. Predictably, Ministers have repeatedly responded to growing parliamentary pressure for a time limit by citing the review, although it was precluded from looking at decisions to detain. Predictably, former prisons ombudsman Stephen Shaw’s final report dodges the question of a time limit.

And yet, Stephen Shaw has clearly been busy. He and his team visited every detention centre and location where migrants are detained in the country. He commissioned an independent review of the literature on the impact of detention on mental health, and legal analysis of the six cases of breaches of Article 3 in detention.

Shaw is no stranger to immigration detention, but even he was clearly shocked by what he found. Those six breaches of Article 3, which outlaws inhuman and degrading treatment: as he points out, ‘No domestic court found a breach of Article 3 in the first eleven years after the passage of the Human Rights Act 1998. I was, therefore, acutely concerned to discover that there had been six recent cases involving people in immigration detention where the British courts had found the Home Office to be in breach of Article 3.’

The reality he found in detention centres clearly increased his alarm. He reported that ‘people with serious mental illness continue to be held in detention and that their treatment and care does not and cannot equate to good psychiatric practice… Such a situation is an affront to civilised values.’

Whether Shaw’s programme of reform is up to the scale of this crisis will be hotly debated in the coming months. However, it is a substantial and radical programme. The headline recommendations are:

A presumption against detention for victims of rape or gender-based violence, people diagnosed with post-traumatic stress disorder, people with learning difficulties and transsexual people;

A presumption against detention for people who are mentally ill, deleting the caveat in the policy guidance allowing for detention where the mental illness can be ‘satisfactorily managed in detention’;

A recognition of the dynamic nature of vulnerability, extending the presumption against detention to people ‘who are sufficiently vulnerable that their continued detention would be injurious to their welfare’ even where they do not fit one of the categories of vulnerability;

An absolute exclusion from detention of pregnant women;

The replacement of the maligned and ineffective Rule 35 procedure with an alternative manner of protecting from detention torture survivors, suicidal people and others who are vulnerable, possibly involving independent external doctors;

Consideration of introducing an independent element into detention decision-making;

A strengthening of legal safeguards against ‘excessive length of detention’;

The application of ‘much greater energy’ to exploring alternatives to detention, including community support.

In stark contrast to his dismissive response to the Parliamentary Inquiry, Immigration Minister James Brokenshire has accepted ‘the broad thrust’ of the Shaw recommendations. This will involve both widening the definition of those who are at risk from detention, and a commitment to ‘strengthen the approach’ towards those who would be disproportionately harmed by detention. So, in principle, more people should be recognised as vulnerable, and they should be more likely actually to be released or not detained as a result.

Further, Brokenshire announces a ‘new approach to the case management of those detained’, requiring ‘a clear removal plan for all those in detention’ and ‘a more rigorous assessment of who enters detention through a new gate-keeping function.’

This is a serious and substantial programme, both in Shaw’s 352 pages and Brokenshire’s three paragraphs. As such, and for all its shortcomings, it should be celebrated. Successive governments have ignored, time and again, the growing mountain of evidence on the harm of detention. Today could mark a watershed moment of recognition that detention must change.

Three caveats, and a reason for optimism. We do not yet know how far the Government accepts the detail of Shaw’s recommendations. Seasoned Home Office-watchers are all too familiar with ‘partially accepted’ syndrome, whereby a radical criticism is accepted only to the extent that it is defanged.

Secondly, the devil will always be in the implementation. The Home Office is a huge and recalcitrant bureaucracy. It will not change course overnight, even if the Minister and senior managers want it to. Solving Rule 35 has been on the agenda for years without appreciable progress, for example.

Thirdly, there is no movement on a time limit, the one step that could force a change of culture. Migrants will still face indefinite detention, with no idea when they will be released. This in itself is incompatible with resolving the crisis of harm in detention. William, a member of Freed Voices who was detained for 2.5 months before he was granted leave to remain, gave this response to the report’s findings: “The Shaw Review makes lots of important recommendations that we welcome and hope the government considers. But any report on detention that side-steps the fact it is indefinite is like trimming the branches and ignoring the rotten trunk.”

Nonetheless, today is a moment for optimism. The Minister’s statement, just as the Shaw review itself, is unprecedented. For many years, detention has grown and grown, its value an article of faith for successive governments. Yet here we have a Minister setting out a plausible vision for reducing the numbers of people detained, the time for which they are detained, and the harm caused by detention. More information will follow on ‘the future shape and size of the detention estate’, but further closures of detention centers appear likely.

The crisis of harm in detention will not be resolved overnight. But this is a start.